The Alien Tort Statute, 1980-2004

For approximately the next 25 years after the Second Circuit’s decision in 1980 in the Filartiga case,[1] the lower federal courts throughout the country upheld at least 16 ATS lawsuits against foreign government officials for violations of international human rights norms.[2]

The Second Circuit itself held that the ATS was not limited to state actors and that certain acts violate the law of nations whether done by state officials or private individuals. Examples of conduct not requiring state action were genocide and certain war crimes. The court also held that de facto states could be liable for torture.[3]

Some ATS cases also were brought against foreign and U.S. corporations for allegedly aiding and abetting human rights violations.[4] One such case was a class action against Swiss banks to recover the bank accounts of Holocaust victims. After the trial court’s denial of the defendants’ dismissal motion, the banks settled the case for a payment of $1.25 billion. Another case was a class action against European insurance companies for failure to pay life insurance benefits for Holocaust victims because there were no proofs of death. This case also was settled with the companies establishing the International Commission for Holocaust-Era Claims that spent $55 million in administrative costs and paid out $35 million of claims.[5]

Three of the plaintiffs’ attorneys active in this field argue that the ATS cases contribute to a global struggle against impunity for human rights violators by:

  • “(1) helping to ensure that the United States does not remain a safe haven for such perpetrators,(2) holding individual perpetrators accountable for human rights abuses, (3) providing the victims with some sense of official acknowledgement and reparation, (4) contributing to the development of international human rights law, . . . (5) building a constituency in the United States that supports the application of international law in such cases and an awareness about human rights violations in countries in all regions of the world . . ., (6) [helping to] create a climate of deterrence and (7) [helping to] catalyze efforts in several countries to prosecute their own human rights violators.”[6]

During this 25-year period, the lower federal courts had no guidance from the U.S. Supreme Court on interpreting the ATS. That changed in 2004 with the Supreme Court’s decision in Sosa v. Alvarez-Machain[7] that will be discussed in a subsequent post.

[1] See Post: U.S. Circuit Court’s 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable (Oct. 23, 2011); 28 U.S.C.§ 1350. During this period most cases and commentaries referred to the statute as the Alien Tort Claims Act or ATCA.

[2] E.g., David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, at 958-59, 962-63 (4th ed. 2009)[“Weissbrodt”]; Coliver, Green & Hoffman, Holding Human Rights Violators Accountable by Using International Law in U.S. Courts: Advocacy Efforts and Complementary Strategies, 19 Emory Int’l L. Rev. 169, 174-86 (2005)[“Coliver”].

[3] Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Weissbrodt at 962-63.

[4]  The viability of ATS cases against corporations is now an issue before the U.S. Supreme Court. (See Post: Alien Tort Statute: Important Cases Heading to U.S. Supreme Court (July 9, 2011); Post: U.S. Supreme Court To Hear Cases Challenging Whether Corporations Can Be Held Liable for Aiding and Abetting Foreign Human Rights Violations (Oct. 17, 2011).

[5]  Weissbrodt at 962.

[6]  Coliver at 174-86.

[7] Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

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As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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